Resolution No. 098491
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RESOLUTION NO. 9849
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF A
TOLLING AGREEMENT BY AND BETWEEN THE CITY OF VERNON
AND BKK WORKING GROUP REGARDING THE BKK CORPORATION
LANDFILL FACILITY CONSENT DECREE
WHEREAS, the BKK Working Group has notified the City of
Vernon that Vernon may have legal liability based upon the disposal of
waste material at the BKK Corporation Landfill Facility in West
Covina, California under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. ("CERCLA");
and
WHEREAS, the City of Vernon and BKK Working Group desire to
enter into a Tolling Agreement to stop the running of the statute of
limitations on any CERCLA claims for a period of three (3) years to
provide sufficient time within which to explore the basis for the
claims and to attempt to reach a settlement of such claims without the
need for litigation; and
WHEREAS, in order to meet the deadline, the City Attorney
executed a Tolling Agreement with BKK Working Group on January 22,
2009, subject to ratification of the City Council of the City of
Vernon; and
WHEREAS, the City Council of the City of Vernon desires to
approve and ratify the actions taken by the City Attorney in executing
the Tolling Agreement dated January 22, 2009.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
28 11 SECTION 1: The City Council of the City of Vernon hereby
i
1 finds and determines that the recitals contained hereinabove are true
2 and correct.
3 SECTION 2: The City Council of the City of Vernon hereby
4 approves and ratifies the City Attorney's execution of the Tolling
5 Agreement dated January 22, 2009 with BKK Working Group, a copy of
6 which is attached hereto as Exhibit A and incorporated by reference.
7 SECTION 3: The City Clerk of the City of Vernon shall
8 certify to the passage of this resolution, and thereupon and
9 thereafter the same shall be in full force and effect.
10 APPROVED AND ADOPTED this 2nd day of February, 2009.
11 '
12 Name: Leonis C. Malburg
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Title: Mayor / -4a" '_ D, e-+efn-
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15 ATTEST:
_6X�-6� Azz,�
17 M NUELA GIRON, Ci y Clerk
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 984�, was
duly adopted by the City Council of the City of Vernon at a regular
meeting of the City Council duly held on Monday, February 2, 2009, and
thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
Vernon.
(SEAL)
h1.4- - , , " '�� /(""I
MANUELA G ON, City Clerk
- 3 -
EXHIBIT
A
TOLLING AGREEMENT
This Tolling Agreement ("Agreement") is made and entered into by and between the
BKK.Working Group and City of Vernon. The BKK Working Group is an unincorporated .
association of twenty-seven entities, identified. in Exhibit A, who in March 2006 entered into a
Consent Decree with the California Department of Toxic Substances Control ("DTSC") related
to the BKK Corporation Landfill Facility ("DTSC Consent Decree"), located in West Covina;
California ("Facility").. Hereinafter, the BKK Working Group; and City of Vernon are singularly
referred to as a "Party" and collectively referred to as the "Parties."
Recitals
A. The BKK Working Group has notified City of Vernon that it may have legal
liability based upon the disposal of waste material at the Facility under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. City of
Vernon denies such liability for purposes of this Agreement.
B. The Parties desire to toll any applicable statute of limitations governing claims
that the Parties could assert against each other relating to the Facility in the manner set forth
below.
Terms and Conditions
1. The BKK Working Group and each of its individual members listed on Exhibit A,
and City of Vernon agree that all statutes of limitations and any other statute, law, rule or
principle of equity of similar effect, including provisions under the California Government
Claims At, California Gov't Code §§ 900-960.8 (collectively, "Statute of Limitations")
applicable to any rights,.claims, causes of action, counterclaims, crossclaims defenses, and
claims act presentation regarding, based upon, or arising out of disposal of waste material at the
Facility, or the ownership or operation of the Facility.which the BKK Working Group could
assert against City of Vernon, or which City of Vernon could assert against the BKK Working
Group as of the Effective Date ("Claims") shall be tolled for the period between the Effective
Date and the Termination Date; and this tolling period shall be excluded from all computations
of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time -related defense otherwise applicable to the
Claims, to the extent such limitations period or other time -related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and City of Vernon agree not to initiate litigation
concerning the investigation, remediation, or the recovery of costs relating to the facility against
the other Party between the Effective Date and the Termination Date. However, this provision
shall not preclude any Party fromseeking information pursuant to the California Public Records
Act ("PRA"), California Gov't Code §§ 6250-6276.48 from another Party or a third Party
relating to waste disposed at or liability associated with the Facility or from enforcing rights to
such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
13
A/72795024.1/3001863-0000308648
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement. .
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time -related defense.
6. The BKK Working Group and City of Vernon agree that this Agreement shall not
apply to any third party and shall not revive any rights, claims, causes of actions, counterclaims,
crossclaims or defenses that are already barred by an applicable provision of law as of the
Effective Date. Notwithstanding the above, this Agreement shall inure to the benefit of and be
binding upon, any and all legal successors to or assigns of the Parties. Nothing expressed or
implied in this Agreement is intended to confer on any person other than. the Parties and their
legal successors or assigns any rights or obligations under this Agreement.
7: This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination.Date of this Agreement shall be the earlier of: (a) three (3) years
from the Effective Date or, (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty (60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by.any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be the date upon which City of
Vernon signs the Agreement.
14
A/72795024.1/3001863-0000308648
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Group
By: Date:
.Name: James J. Dragna, Esq. Title: Attorney for the BKK Working Group
City of Vernon
B. Date: January. 22, 2009
Print Na " e: Jeq A. Harrison Title: City.. Attorney-. .
CONTACT INFORMATION FOR CITY OF VERNON
Name: Jeff A. Harrison
Title: City Attorney
Company: City of Vernon
Address: 4305 Santa Fe Avenue
Vernon, CA 90058
Phone: (323) 583-8811 x 173 . .
Email: jharrison@ci.vernon.ca.us
15
A/72795024.1/3001863-0000308648
)exhibit A
American Honda Motor Co., Inc.
Anadarko Petroleum Corporation
Atlantic Richfield Company
Bayer CropScience Inc.
Chemical Waste Management, Inc.
Chevron Environmental Management Company
City of Los Angeles, Department.of Water and Power
_ Conocophillips Company
1)ucon7rnun Aerostructures, Inc. .
Exxon Mobil Corporation
General_Motors Corporation
Honeywell international. Inc.
Huntington Beach Company
McFarland Energy; Inc.
National Steel and Shipbuilding Com. any
Northrop Grumman Corporation
Quemetco, Inc..
Rohr, Inc.
Shell Oil Company
Southern California Edison Company
Thums Long Beach Company
Union Carbide. Corporation
Union Oil Company of California
Washington Mutual Bank
Waste Management Collection and Recycling, Inc.
Western Waste Industries, Inc.
Xerox Corporation
Juarez, Debbie
From: Lehr, Judy
Sent: Tuesday, March 10, 2009 2:00 PM
To: Juarez, Debbie
Subject: FW: Tolling Agreement - BKK Landfill
FYI
Judy Lehr
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 368
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail
messages attached to it may contain confidential information that is legally privileged. If you are not
the intended recipient, or a person responsible for delivering it to the intended recipient, you are
hereby notified that any disclosure, copying, distribution or use of any of the information contained in
or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in
error, please immediately notify the sender. Please destroy the original transmission and its
attachments without reading or saving in any manner.
From: Lehr, Judy
Sent: Tuesday, March 10, 2009 1:58 PM
To: 'connie.delgado@bingham.com'
Subject: Tolling Agreement - BKK Landfill
Hi Connie,
Can you tell me the status of sending back one fully executed Tolling Agreement to Mr. Harrison? We sent you the 2
signed Tolling Agreements via Federal Express on January 22, 2009.
Judy Lehr
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 368
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail
messages attached to it may contain confidential information that is legally privileged. If you are not
the intended recipient, or a person responsible for delivering it to the intended recipient, you are
hereby notified that any disclosure, copying, distribution or use of any of the information contained in
or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in
error, please immediately notify the sender. Please destroy the original transmission and its
attachments without reading or saving in any manner.
TOLLING AGREEMENT'
This Tolling Agreement ("Agreement") is made and entered into by and between the
BKK Working Group and City of Vernon. The BKK Working Group is an unincorporated
association of twenty-seven entities, identified in Exhibit A. who in March 2006' entered into a
Consent Decree with the California Department of Toxic Substances Control ("DTSC") related
to the BKK Corporation Landfill Facility ("DTSC Consent Decree"), located in West Covina;
California ("Facility"). Hereinafter, the BKK Working Group, and City of Vernon are singularly
referred to as a "Party" and collectively referred to as the "Parties."
Recitals
A. The BKK Working Group has notified City of Vernon that it mayhave.legal
liability based upon the disposal of waste material at the Facility under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. City of
Vernon denies such liability for purposes of this Agreement.
B. The Parties desire to toll any applicable statute of limitations governing claims
that the Parties could assert against each other relating to the Facility in the manner set forth
below.
Terms and Conditions
1. The BKK Working Group and each of its individual members listed on Exhibit A,
and City of Vernon agree that all statutes of limitations and any other statute, law, rule or
principle of equity of similar effect, including provisions under the California' Government
Claims At, California Gov't Code § § 900-960.8 (collectively, "Statute of Limitations")
applicable to any rights, claims, causes of action, counterclaims, crossclaims defenses, and
claims act presentation regarding, based upon, or arising out of disposal of waste material at the
Facility, or the ownership or operation of the Facility which the BKK Working Group could
assert against City of Vernon, or which City of Vernon could assert against the BKK Working
Group as of the Effective Date ("Claims") shall be tolled for the period between the Effective
Date and the Termination Date, and this tolling period shall be excluded from all computations
of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise`
raise any Statute of Limitations or any other time -related defense otherwise applicable to the
Claims, to the extent such limitations period or other time -related defense is tolled by this
Agreement; as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and City of Vernon agree not to initiate litigation
concerning the investigation, remediation, or the recovery of costs relating to the Facility against
the other Party between the Effective Date and the Termination Date. However, this provision
shall not preclude any Party from seeking information pursuant to the California Public Records
Act ("PRA"), California Gov't Code § § 6250-6276.48 from another Party or a third Party
relating to waste disposed at or liability associated with the Facility or from enforcing rights to
such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
13
A/72795024.1/3001863-0000308648
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time -related defense.
6. The BKK Working Group and City of Vernon agree that this Agreement shall not
apply to any third party and shall not revive any rights, claims, causes of actions, counterclaims,
crosselaims or defenses that are already barred by an applicable provision of law as of the
Effective Date. Notwithstanding the above, this Agreement shall inure to the benefit of and be
binding upon, any and all legal successors to or assigns of the Parties. Nothing expressed or
implied in this Agreement is intended to confer on any person other than. the Parties and their
legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single;
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of. (a) three (3) years
from the Effective Date or, (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty (60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be the date upon which City of
Vernon signs the Agreement.
14,
A/72795 024.1 /3 001863-0000308648
i
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Gr up
By: Date: M10
Name: JaoesJ.ragna, Esq. Title: Attorney for the BKK Working Group
City of Vernon
By: 1 Date: January 22, 2009
Print Na e: Je f A. Harrison Title: City. Attorney . >
CONTACT INFORMATION FOR CITY OF VERNON
Name: Jeff A. Harrison
Title: City Attorney
Company: City of Vernon
Address: 4305 Santa Fe Avenue -
Vernon, CA 90058
Phone:. (323) 583-8811 x _1.73
Email: jharrison@ci.vernon.ca.us
A/72795024.1/3001863-0000308648
Exhibit A
American Honda Motor Co., Inc.
Anadarko Petroleum Corporation
Atlantic Richfield Company
Bayer CropScience Inc.
Chemical Waste Management, Inc.
Chevron Environmental Management Company
City of Los Angeles, Department of Water and Power
ConocoPhillips Company
Ducommun Aerostructures, Inc.
Exxon Mobil Corporation
General Motors Corporation
Honeywell International Inc.
Huntington Beach Company
McFarland Energy, Inc.
National Steel and Shipbuilding Company
Northrop Grumman Corporation
Quemetco, Inc,
,Rohr, Inc.
Shell Oil Company
Southern California Edison Company
Thums Long Beach Company
Union Carbide Corporation
Union Oil Company of California
Washington Mutual Bank
Waste Management Collection and Recycling, Inc,
Western Waste Industries, Inc.
Xerox Corporation
Juarez, Debbie
From:
Muro, Evangelina
Sent:
Thursday, March 15, 2012 2:10 PM
To:
Juarez, Debbie
Subject:
FW: BKK Landfill, Azusa CA Second Tolling Agreement
I will let you know when I hear back from them and/or receive the agreement
Eva Muro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering
it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained
in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately
notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner.
From: Muro, Evangelina
Sent: Thursday, March 15, 2012 2:08 PM
To: 'marina.rodriguez@bingham.com'
Cc: 'denise.fellers@bingham.com'
Subject: BKK Landfill, Azusa CA Second Tolling Agreement
Marina,
The Second Tolling Agreement was approved by the City Council and sent via federal express to your office on
January 3, 2012 for execution.
Please provide the status of when the City should expect the fully executed agreement.
Thank you.
Eva Muro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering
it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained
in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately
notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner.
Juarez, Debbie
From: Muro, Evangelina
Sent: Thursday, March 15, 2012 3:47 PM
To: Juarez, Debbie
Subject: FW: BKK Landfill, Azusa CA Second Tolling Agreement
FYI
Eva Muro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering
it to the intended recipient, you are hereby notified -that -any -disclosure, copying, distribution or use of any of the information contained
in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately
notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner.
From: Rodriguez, Marina [mailto: marina. rodriguez(abinoham.comj
Sent: Thursday, March 15, 2012 3:43 PM
To: Muro, Evangelina
Cc: Fellers, Denise G.
Subject: RE: BKK Landfill, Azusa CA Second Tolling Agreement
Ms. Muro, we've received the City's signed Second Tolling Agreement. We plan on returning the fully -executed
agreement next week. Thank you.
From: Muro, Evangelina(mailto:emuro(a)ci.vernon.ca.usj
Sent: Thursday, March 15, 2012 2:08 PM
To: Rodriguez, Marina
Cc: Fellers, Denise G.
Subject: BKK Landfill, Azusa CA Second Tolling Agreement
Marina,
The Second Tolling Agreement was approved by the City Council and sent via federal express to your office on
January 3, 2012 for execution.
Please provide the status of when the City should expect the fully executed agreement.
Thank you.
Eva Muro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering
it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained
in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately
notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner.
Confidentiality Notice: The information in this e-mail (including attachments, if any) is considered
confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution
or copying of this e-mail is prohibited except by or on behalf of the intended recipient. If you have
received this email in error, please notify me immediately by reply email, delete this email, and do not
disclose its contents to anyone.
Bingham McCutchen LLP Circular 230 Notice: To ensure compliance with IRS requirements, we inform you
that any U.S. federal tax advice contained in this communication is not intended or written to be used,
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purpose without our prior written consent.
COPY
3
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
January 3, 2012
Marina Rodriguez VIA FEDERAL EXPRESS
Senior Paralegal
Bingham McCutchen LLP
355 South Grand Avenue, Suite 4400
Los Angeles, CA 90071
Re: Second Tolling Agreement BKK Landfill, Azusa, California
Dear Ms. Rodriguez:
Pursuant to Ms. Fellers's letter dated October 28, 2011,
enclosed please find two executed originals of the Second
Tolling Agreement. Please return one fully executed original to
my attention within 30 days of your receipt of this letter.
Thank you for your cooperation and courtesy in this matter.
a
ly,
. Y G CHI
uty C' y At orney
WY:em
Enclosures
Exclusively Industrial
SECOND TOLLING AGREEMENT
This Second Tolling Agreement ("Agreement") is made and entered into by and between
the BKK Working Group and the City of Vernon. The BKK Working Group is an
unincorporated association of thirty-three entities, identified in Exhibit A, who in August 2010
entered into a Second Consent Decree with the California Department of Toxic Substances
Control ("DTSC") related to the BKK Corporation Landfill Facility ("DTSC Consent Decree"),
located in West Covina, California ("Facility"). Hereinafter, the BKK Working Group and the
City of Vernon are singularly referred to as a "Party" and collectively referred to as the "Parties."
Recitals
A. The BKK Working Group has notified the City of Vernon that it may have legal
liability based upon the disposal of waste material at the Facility under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. The City
of Vernon denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement ("2009 Tolling Agreement") effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the City of Vernon or vice versa relating to the Facility until January
2012.
C. The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
D. This Agreement is a successor agreement to the 2009 Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the City of Vernon agree that all statutes of limitations and any other statute, law, rule or
principle of equity of similar effect, including provisions under the California Government
Claims At, California Gov't Code §§ 900-960.8 (collectively, "Statute of Limitations")
applicable to any rights, claims, causes of action, counterclaims, crossclaims, defenses, and
claims act presentation regarding, based upon, or arising out of disposal of waste material at the
Facility, or the ownership or operation of the Facility which the BKK Working Group could
assert against theCity of Vernon, or which the City of Vernon could assert against the BKK
Working Group as of the Effective Date ("Claims") shall be tolled for the period between the
Effective Date and the Termination Date, and this tolling period shall be excluded from all
computations of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time -related defense otherwise applicable to the
Claims, to the extent such limitations period or other time -related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and the City of Vernon agree not to,initiate litigation
concerning the investigation, remediation, or the recovery of costs relating to the Facility against
the other Party between the Effective Date and the Termination Date. However, this provision
A/14570195.1
shall not preclude any Party from seeking information pursuant to the California Public Records
Act ("PRA"), California Gov't Code §§ 6250-6276.48 from another Party or a third Party
relating to waste disposed at or liability associated with the Facility or from enforcing rights to
such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time -related defense.
6. The BKK Working Group and the City of Vernon agree that this Agreement shall
not apply to any third party and shall not revive any rights, claims, causes of action, .
counterclaims, crossclaims or defenses that are already barred by an applicable provision of law
as of the Effective Date. Notwithstanding the above, this Agreement shall inure to the .benefit of
and be binding upon any and all legal successors to or assigns of the Parties. Nothing expressed
or implied in this Agreement is intended to confer on any person other than the Parties and their
legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of: (a) three (3) years
from the Effective Date, or (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty (60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be January 3, 2012.
2
A/74570195.1
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Group
Date:
Name: James J. Dragna, Esq. Title: Attorney for the BKK Working Group
Cit
LIZ
Pri:
Date: , (y
Title: Chief Denuty- Cj ty Attorney
CONTACT INFORMATION FOR CITY OF VERNON
Name: Willard G. Aamaguchi .
Title: Chief Deputy City Attorney
COmpanY City of Vernon
Address: 4305 Santa Fe Avenue
Vernon, CA 90058
Phone: (323) 583-8811 ext. 175
Email: wyamaguchi@ci.vernon.ca.us
3
A/74570195.1
EXHIBIT A
• American Honda Motor Co., Inc.
• Anadarko E&P Company LP
• Atlantic Richfield Company
• Bayer Cropscience Inc.
The Boeing Company
• Chemical Waste Management, Inc.
• Chevron Environmental Management Company
• City of Los Angeles, Acting By and Through the Los Angeles Department of Water and
Power
ConocoPhillips company
• The Dow Chemical Company
• Ducommun Aerostructures Inc.
Exxon Mobil Corporation
Gemini Industries, Inc.
• General Latex and Chemical Corporation
• Honeywell International Inc.
Huntington Beach Company
Lockheed Martin Corporation
• McFarland Energy, Inc.
Morton International, Inc.
• National Steel and Shipbuilding Company
Northrop Grumman Corporation
• Quemetco, Inc.
Raytheon Company
Rohr, Inc.
• Rohm and Haas Company
• Shell Oil Company
Southern California Edison Company
THUMS Long Beach Company
• Union Carbide Corporation
Union Oil Company of California
• Waste Management Collection and Recycling, Inc.
Western Waste Industries
• Xerox Corporation
A/74541912.1
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
January 3, 2012
COY
Marina Rodriguez VIA FEDERAL EXPRESS
Senior Paralegal
Bingham McCutchen LLP
355 South Grand Avenue, Suite 4400
Los Angeles, CA 90071
Re: Second Tolling Agreement BKK Landfill, Azusa, California
Dear Ms. Rodriguez:
Pursuant to Ms. Fellers's letter dated October 28, 2011,
enclosed please find two executed originals of the Second
Tolling Agreement. Please return one fully executed original to
my attention within 30 days of your receipt of this letter.
Thank you for your cooperation and courtesy in this matter.
You truly,
WILLARD G. YA AG CHI
Chief Deputy C' y At orney
WY:em
Enclosures
Exclusivefy Industfiaf
SECOND TOLLING AGREEMENT
This Second Tolling Agreement ("Agreement") is made and entered into by and between
the BKK Working Group and the City of Vernon. The BKK Working Group is an
unincorporated association of thirty-three entities, identified in Exhibit A, who in August 2010
entered into a Second Consent Decree with the California Department of Toxic Substances
Control ("DTSC") related to the BKK Corporation Landfill Facility ("DTSC Consent Decree"),
located in West Covina, California ("Facility"). Hereinafter, the BKK Working Group and the
City of Vernon are singularly referred to as a "Party" and collectively referred to as the "Parties."
Recitals
A. The BKK Working Group has notified the City of Vernon that it may have legal
liability based upon the disposal of waste material at the Facility under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. The City
of Vernon denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement ("2009 Tolling Agreement") effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the City of Vernon or vice versa relating to the Facility until January
2012.
C. . The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
D. This Agreement is a successor agreement to the 2009 Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the City of Vernon agree that all statutes of limitations and any other statute, law, rule or
principle of equity of similar effect, including provisions under the California Government
Claims At, California Gov't Code §§ 900-960.8 (collectively, "Statute of Limitations")
applicable to any rights, claims, causes of action, counterclaims, crossclaims, defenses, and
claims act presentation regarding, based upon, or arising out of disposal of waste material at the
Facility, or the ownership or operation of the Facility which the BKK Working Group could
assert against theCity of Vernon, or. which the City of Vernon could assert against the BKK
Working Group as of the Effective Date ("Claims") shall be tolled for the period between the
Effective Date and the Termination Date, and this tolling period shall be excluded from all
computations of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time -related defense otherwise applicable to the
Claims, to the extent such limitations period or other time -related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working.Group and the City of Vernon agree not to.initiate litigation
concerning the investigation, remediation, or the recovery of costs relating to the Facility against
the other Party between the Effective Date and the Termination Date. However, this provision
A/74570195.1
shall not preclude any Party from seeking information pursuant to the California Public Records
Act ("PRA"), California Gov't Code §§ 6250-6276.48 from another Party or a third Party
relating to waste disposed at or liability associated with the Facility or from enforcing rights to
such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time -related defense.
6. The BKK Working Group and the City of Vernon agree that this Agreement shall
not apply to any third party and shall not revive any rights, claims, causes of action, .
counterclaims, crossclaims or defenses that are already barred by an applicable provision of law
as of the Effective Date. Notwithstanding the above, this Agreement shall inure to the ,benefit of
and be binding upon any and all legal successors to or assigns of the Parties. Nothing expressed
or implied in this Agreement is intended to confer on any person other than the Parties and their
legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of. (a) three (3) years
from the Effective Date, or (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty (60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be January 3, 2012.
2
A/74570195.1
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Group
By:
Name: James J. Dragna, Esq.
City of
By: /'
Print N,
Date:
Title: Attorney for the BKK Working Group
Date: (y
Title: Chief Deputy. City Attorney
CONTACT INFORMATION FOR CITY OF VERNON
Name: Willard G. -Yamaguchi_..
Title: Chief Deputy City Attorney
Company: City of Vernon
Address: 4305 Santa Fe Avenue
Vernon, CA 90058
Phone: (323) 583-8811 ext. 175
Email: wyamaguchi@ci.vernon. ca...us
3
A/74570195.1
EXHIBIT A
• American Honda Motor Co., Inc.
• Anadarko E&P Company LP
• Atlantic Richfield Company
• Bayer Cropscience Inc.
• The Boeing Company
Chemical Waste Management, Inc.
• Chevron Environmental Management Company
• City of Los Angeles, Acting By and Through the Los Angeles Department of Water and
Power
• ConocoPhillips company
• The Dow Chemical Company
• Ducommun Aerostructures Inc.
• Exxon Mobil Corporation
• Gemini Industries, Inc.
• General Latex and Chemical Corporation
• Honeywell International Inc.
• Huntington Beach Company
• Lockheed Martin Corporation
McFarland Energy, Inc.
• Morton International, Inc.
• National Steel and Shipbuilding Company
• Northrop Grumman Corporation
• Quemetco, Inc.
• Raytheon Company
• Rohr, Inc.
• Rohm and Haas Company
• Shell Oil Company
• Southern California Edison Company
• THUMS Long Beach Company
• Union Carbide Corporation
• Union Oil Company of California
• Waste Management Collection and Recycling, Inc.
• Western Waste Industries
• Xerox Corporation
A/74541912.1
Juarez, Debbie
From: Muro, Evangelina
Sent: Thursday, March 15, 2012 3:47 PM
To: Juarez, Debbie
Subject: FW: BKK Landfill, Azusa CA Second Tolling Agreement
FYI
Eva Muro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering
it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained
in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately
notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner.
From: Rodriguez, Marina [mailto:marina.rodriguezCcbbingham.coml-
Sent: Thursday, March 15, 2012 3:43 PM
To: Muro, Evangelina
Cc: Fellers, Denise G.
Subject: RE: BKK Landfill, Azusa CA Second Tolling Agreement
Ms. Muro, we've received the City's signed Second Tolling Agreement. We plan on returning the fully -executed
agreement next week. Thank you.
From: Muro, Evangelina [mailto:emuroC@ci.vernon.ca.u0
Sent: Thursday, March 15, 2012 2:08 PM
To: Rodriguez, Marina
Cc: Fellers, Denise G.
Subject: BKK Landfill, Azusa CA Second Tolling Agreement
Marina,
The Second Tolling Agreement was approved by the City Council and sent via federal express to your office on
January 3, 2012 for execution.
Please provide the status of when the City should expect the fully executed agreement
Thank you.
Eva Muro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
RECEIVES RW
DEC 1 5 2011 DEC 14 29111
CITY CLERK'S OFFICE CITY A r M IN 10 T.RnTI O N
STAFF REPORT
CITY ATTORNEYS OFFICE
CLOSED SESSION
DATE: December 13, 2011
TO Honorable Mayor and City Council
L
FROM: Willard G. Yamaguchi, Chief Deputy City Attorney
RE: BKK Landfill, Azusa, California
Second Tolling Agreement
Facts:
On February 2, 2009, the City Council adopted Resolution No. 9849, approving and ratifying the
actions of former City Attorney, Jeff Harrison, in executing a Tolling Agreement with BKK
Working Group regarding the BKK Corporation Landfill Facility Consent Decree for pollution
related issues located at the BKK landfill in West Covina. The current Tolling Agreement will
expire in January, 2012.
Due to the impending expiration of the original tolling agreement, BKK Working Group has
submitted a Second Tolling Agreement to extend the statue of limitations for an additional period
of three (3) years.
Recommendation:
It is hereby recommended that the City Council approve the Second Tolling Agreement with
BKK Working Group and authorize the Chief Deputy City Attorney to execute said agreement
on behalf of the City.
cc: Mark Whitworth, City Administrator
SECOND TOLLING AGREEMENT
This Second Tolling Agreement ("Agreement") is made and entered into by and between
the BKK Working Group and the City of Vernon. The BKK Working Group is an
unincorporated association of thirty-three entities, identified in Exhibit A, who in August 2010
entered into a Second Consent Decree with the California Department of Toxic Substances
Control ("DTSC") related to the BKK Corporation Landfill Facility ("DTSC Consent Decree"),
located in West Covina, California ("Facility"): Hereinafter, the BKK Working Group and the
City, of Vernon are singularly referred to as a "Party" and collectively referred to as the "Parties."
Recitals
A. The BKK Working Group has notified the City of Vernon that it may have legal
liability based upon the disposal of waste material at the Facility under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. The City
of Vernon denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement ("2009 Tolling Agreement") effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the City of Vernon or vice versa relating to the Facility until January
2012.
C. The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
D. This Agreement is a successor agreement to the 2009 Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the City of Vernon agree that all statutes of limitations and any other statute, law, rule or
principle of equity of similar effect, including provisions under the California Government
Claims At, California Gov't Code §§ 900-960.8 (collectively, "Statute of Limitations")
applicable to any rights, claims, causes of action, counterclaims, crossclaims, defenses, and
claims act presentation regarding, based upon, or arising out of disposal of waste material at the
Facility, or the ownership or operation of the Facility which the BKK Working Group could
assert against theCity of Vernon, or which the City of Vernon could assert against the BKK
Working Group as of the Effective Date ("Claims") shall be tolled for the period between the
Effective Date and the Termination Date, and this tolling period shall be excluded from all
computations of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time -related defense otherwise applicable to the
Claims, to the extent such limitations period or other time -related defense is tolled.by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and the City of Vernon agree not to initiate litigation
concerning the investigation, remediation, or the recovery of costs relating to the Facility against
the other Party between the Effective Date and the Termination Date. However, this provision
A/74570195.1
shall not preclude any Party from seeking information pursuant to the California Public Records
Act ("PRA"), California Gov't Code §§ 6250-6276.48 from another Party or a third Party
relating to waste disposed at or liability associated with the Facility or from enforcing rights to
such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time -related defense.
6. The BKK Working Group and the City of Vernon agree that this Agreement shall
not apply to any third party and shall not revive any rights, claims, causes of action,
counterclaims, crossclaims or defenses that are already barred by an applicable provision of law
as of the Effective Date. Notwithstanding the above, this Agreement shall inure to the benefit of
and be binding upon any and all legal'successors to or assigns of the Parties. Nothing expressed
or implied in this Agreement is intended to confer on any person other than the Parties and their
legal successors or assigns any rights or obligations udder this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of: (a) three (3) years
from the Effective Date, or (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty (60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
. 11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be January 3, 2012.
2
Al74570195.1
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Group
By: Date:
Name: James J. Dragna, Esq. Title: Attorney for the BKK Working Group
City of Vernon
By: Date:
Print Name: Willard G. Yamaguchi Title: Chief Deputy City Attorney
CONTACT INFORMATION FOR CITY OF VERNON
Name: Willard G. Yamaguchi
Title: ;f;hief Deputy Citv Attorney
Company:'City of Vernon
Address: 4305 Santa Fe Avenue
Vernon, CA 90058
Phone: (323) 583-8811 ext.
Email: wyamaguchi@ci.vernon.ca.us
3
A/74570195.1
EXHIBIT A
• American Honda Motor Co., Inc.
Anadarko E&P Company LP
• Atlantic Richfield Company
• Bayer Cropscience Inc.
The Boeing Company
Chemical Waste Management, Inc.
Chevron Environmental Management Company
• City of Los Angeles, Acting By and Through the Los Angeles Department of Water and
Power
ConocoPhillips company
The Dow Chemical Company
Ducommun Aerostructures Inc.
Exxon Mobil Corporation
Gemini Industries, Inc.
General Latex and Chemical Corporation
Honeywell International Inc.
• Huntington Beach Company
• Lockheed Martin Corporation
• McFarland Energy, Inc.
• Morton International, Inc.
• National Steel and Shipbuilding Company
• Northrop Grumman Corporation
• Quemetco, Inc.
• Raytheon Company
• Rohr, Inc.
• Rohm and Haas Company
• Shell Oil Company
• Southern California Edison Company
• THUMS Long Beach Company
• Union Carbide Corporation
• Union Oil Company of California
• Waste Management Collection and Recycling, Inc.
• Western Waste Industries
• Xerox Corporation
A/74541912.1
BINGHAM
Beijing
Boston
Frankfurt
Hartford
Hong Kong
London
Los Angeles
New York
Orange County
San Francisco
Santa Monica
Silicon Valley
Tokyo
Washington
Bingham McCutchen LLP
Suite 4400
355 South Grand Avenue
Los Angeles, CA
9oo7a-3sn6
T+t.z13.680.6400
F +t.213.680.6499
bingham.com
Marina Rodriguez
Direct Phone: 213.680.6690
Direct Fax: 213.680.6499
marina.rodriguez@bingham.com
March 23, 2012
Via US Mail
Willard G. Yamaguchi
Chief Deputy City Attorney
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Re: BKK Landfill, West Covina, California
Fully Executed Second Tolling Agreement
City of Vernon
Dear Willard G. Yamaguchi:
MAR 2 6 2012 D
CITY ATTORNEY DEPT,
Enclosed for your records is a copy of the fully executed Second Tolling Agreement
regarding the BKK Landfill located in West Covina, California.
Sincerely yours,
Manna Rodriguez
Paralegal Specialist
Enclosure
An4846340.1
SECOND TOLLING AGREEMENT
This Second Tolling Agreement ("Agreement") is made and entered into by and between
the BKK Working Group and the City of Vernon. The BKK Working Group is an
unincorporated association of thirty-three entities, identified in Exhibit A, who in August 2010
entered into a Second Consent Decree with the California Department of Toxic Substances
Control ("DTSC") related to the BKK Corporation Landfill Facility ("DTSC Consent Decree"),
located in West Covina, California ("Facility"). Hereinafter, the BKK Working Group and the
City of Vernon are singularly referred to as a "Party" and collectively referred to as the "Parties.'
Recitals
A. The BKK Working Group has notified the City of Vernon that it may have legal
liability based upon the disposal of waste material at the Facility under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. The City
of Vernon denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement ("2009 Tolling Agreement") effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the City of Vernon or vice versa relating to the Facility until January
2012.
C. The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
D. This Agreement is a successor agreement to the 2009 Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the City of Vernon agree that all statutes of limitations and any other statute, law, rule or
principle of equity of similar effect, including provisions under the California Government
Claims At, California Gov't Code §§ 900-960.8 (collectively, "Statute of Limitations")
applicable to any rights, claims, causes of action, counterclaims, crossclaims, defenses, and
claims act presentation regarding, based upon, or arising out of disposal of waste material at the
Facility, or the ownership or operation of the Facility which the BKK Working Group could
assert against theCity of Vernon, or which the City of Vernon could assert against the BKK
Working Group as of the Effective Date ("Claims") shall be tolled for the period between the
Effective Date and the Termination Date, and this tolling period shall be excluded from all
computations of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time -related defense otherwise applicable to the
Claims, to the extent such limitations period or other time -related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and the City of Vernon agree not to initiate litigation
concerning the investigation, remediation, or the recovery of costs relating to the Facility against
the other Party between the Effective Date and the Termination Date. However, this provision
A/74570195.1
shall not preclude any Party from seeking information pursuant to the California Public Records
Act ("PRA"), California Gov't Code § § 6250-6276.48 from another Party or a third Party
relating to waste disposed at or liability associated with the Facility or from enforcing rights to
such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time -related defense.
6. The BKK Working Group and the City of Vernon agree that this Agreement shall
not apply to any third party and shall not revive any rights, claims, causes of action,
counterclaims, crossclaims or defenses that are already barred by an applicable provision of law
as of the Effective Date. Notwithstanding the above, this Agreement shall inure to the benefit of
and be binding upon any and all legal successors to or assigns of the Parties. Nothing expressed
or implied in this Agreement is intended to confer on any person other than the Parties and their
legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of: (a) three (3) years
from the Effective Date, or (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty (60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be January 3, 2012.
2
A/74570195.I
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Grou
By:
Name: J �Jragna, Esq.
Cii
L-fi
Pril
Date: 1 1a/1( Z
Title: Attorney for the BKK Working Group
Date: ( 51"
Title: Chief Deputy City Attorney
CONTACT INFORMATION FOR CITY OF VERNON
Name: Willard G. Yamaguchi
Title: Chief Deputy City Attorney
Company: City of Vernon
Address: 4305 Santa Fe Avenue
CA 90058
Phone: (323) 583-8811 ext. 175
Email: wyamaguchi@ci.vernon.cai.us
3
A/74570195.I
EXHIBIT A
American Honda Motor Co., Inc.
Anadarko E&P Company LP
• Atlantic Richfield Company
Bayer Cropscience Inc.
• The Boeing Company
• Chemical Waste Management, Inc.
Chevron Environmental Management Company
City of Los Angeles, Acting By and Through the Los Angeles Department of Water and
Power
• ConocoPhillips company
The Dow Chemical Company
Ducommun Aerostructures Inc.
Exxon Mobil Corporation
Gemini Industries, Inc.
• General Latex and Chemical Corporation
• Honeywell International Inc.
Huntington Beach Company
Lockheed Martin Corporation
McFarland Energy, Inc.
Morton International, Inc.
National Steel and Shipbuilding Company
• Northrop Grumman Corporation
Quemetco, Inc.
Raytheon Company
Rohr, Inc.
Rohm and Haas Company
Shell Oil Company
Southern California Edison Company
THUMS Long Beach Company
Union Carbide Corporation
Union Oil Company of California
Waste Management Collection and Recycling, Inc.,
Western Waste Industries
• Xerox Corporation
A/74541912.1